The case of James-Bowen v Commissioner of Police of the Metropolis [2018] UKSC 40; 1 WLR 4021 concerned the principle of duty of care. It was established that where an employer is involved in litigation, their employer does not owe them a duty of care in respect of their economic and reputational interests. The courts, when looking to extend the law in novel duty of care situations look at:

  1. Does the duty proceed incrementally from previous case law?
  2. Does it align with policy considerations?
  3. What is the need for justice here?
  4. Would the law remain/become coherent with this duty?

Facts of James-Bowen v Commissioner of Police of the Metropolis [2018] UKSC 40; 1 WLR 4021

  • The C police officers were involved with the arrest of a suspected terrorist (BA)
  • BA later complained he was subjected to assault and injury by the Cs during the arrest
  • These complaints resulted in the officers being investigated and dismissed, with their identities released to the public and their families subsequently threatened by BA’s supporters
  • BA then brought an action against the Police Commission (D) for vicarious liability, the officers refused to give evidence at trial without measures in place to protect their identities
  • D settled outside of court, apologising for the officers’ actions
  • After the Cs were charged and acquitted for the assault, they began proceedings against the Commissioner believing they were owed a duty of care
  • This alleged duty of care was for their employer/quasi-employer to take reasonable care to safeguard their welfare, which included their economic, professional, and reputational welfare
  • At first instance, the judge struck out the claims, however the Court of Appeal believed it was arguable a duty of care was owed
  • The Commissioner appealed to the Supreme Court

Issues in James-Bowen v Commissioner of Police of the Metropolis [2018] UKSC 40; 1 WLR 4021

  • In this novel employment situation, did the Commissioner owe the police officers a duty of care to safeguard their welfare, with the inclusion of economic and reputational interests?

Held by the Supreme Court

Appeal allowed. The Commissioner did not owe them a duty of care in this novel situation.

Lord Lloyd-Jones

Lord Lloyd-Jones (with whom the other Justices agreed), looked at previous case law to decide whether a duty was owed in the present case:

  • “In Robinson v Chief Constable of West Yorkshire Police [2018] 2 WLR 595 this court recently held, with regard to this aspect of Caparo, that it is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised.” [22]

To test whether the law should extend to the novel situation presented, Lord Lloyd-Jones laid down the work of previous judges as considerations:

Recognising a duty of care, which was then extended:

  • “the present case is very clearly one in which it is sought to extend a duty of care to a new situation. As Lord Reed JSC explained in Robinson, in determining whether such a duty should be recognised the law will proceed incrementally and by analogy with previous decisions.” [23]
  • “The theme was developed by Lord Bingham in … Barclays Bank plc [2007] 1 AC 181, para 7, where he observed: “the incremental test is of little value as a test in itself, and is only helpful when used in combination with a test or principle which identifies the legally significant features of a situation. The closer the facts of the case in issue to those of a case in which a duty of care has been held to exist, the readier a court will be … to find that there has been an assumption of responsibility or that the proximity and policy conditions of the threefold test are satisfied.”” [23]
  • “the proposed duty will be tested against considerations of legal policy and judgment will have to be exercised with particular regard to both the achievement of justice in the particular case and the coherent development of the law.” [24]

The law cannot be incrementally extended:

  • In Calveley [1989], injury to reputation of the officers did not constitute as reasonably foreseeable damage which would constitute an action under Donoghue v Stevenson [1932], nor were the Constable vicariously liable for the health damage [25]
  • Lord Lloyd-Jones believed the case of Calveley to be of significance to the current case. “If a chief constable does not, in principle, owe a duty of care to protect the economic and reputational interests of his officers in respect of the prosecution of an investigation or disciplinary proceedings, it is difficult to see why he should owe a duty to his officers as to the manner in which he defends a claim brought against him by a third party.” [26]

Policy considerations and legal cohesion

Differing interests of the employer and employee

  • “The interests of an employer who is sued on the basis that he is vicariously liable for the tortious conduct of his employees differ fundamentally from the interests of those employees. The financial, commercial and reputational standing of the employer may be at stake. It is the employer who will incur the cost of defending the proceedings which, however successful the defence may be, is most unlikely to be recovered in full, and who, if unsuccessful, will bear the liability to the claimant.” [30]
  • As per the Civil Liability (Contribution) Act 1978, “where an employer is alleged to be vicariously liable for the tortious conduct of his employee, the possibility of contribution proceedings between employer and employee highlights this potential conflict of interests.” [31]
  • Thus, the differences between the interests of an employer to that of his employee “suggest that it would not be fair, just or reasonable to impose on an employer a duty of care to defend legal proceedings so as to protect the economic or reputational interests of his employee.” [32]

Policy considerations in respect of the conduct of litigation

  • “there is an important public policy that parties in dispute should, in general, be able to avail themselves of the processes of litigation in order to resolve their disputes, without fear of incurring liability to third parties if they do so … The proposed duty would, to my mind, inevitably inhibit the conduct of the defence. An employer would, understandably, be less likely to make admissions in circumstances where they are objectively justified or to make use of evidence which reflects unfavourably on an employee, for fear of the subsequent repercussions.” [35]
  • Such duty could also render the risk of deterring settlement outside of court, delay to proceedings, and may result in consequential [36-38]

Legal professional privilege

  • Presently, “the commissioner and the officers are likely to have had a shared interest in successfully defending the claim brought by BA against the commissioner, at least initially. … Although the relationship between the commissioner and the officers is closely analogous to that of employer and employees, there is nothing in the present situation which resembles the relationship between a company and its shareholders, or between a trustee and his beneficiaries, or between parties to a joint venture agreement.” [45]
  • Their relationship “does not require or justify such an entitlement of access to legally privileged material.” [45]
  • In the event the Cs were allowed privileged material, this may have “the potential to undermine the effective conduct of the defence of the original claim against the employer in that the possibility of such a claim in negligence and the likelihood of having to waive privilege may well inhibit frank discussion between the employer and his legal advisers. This is, therefore, a further consideration which weighs against the recognition of the duty of care for which the officers contend.” [46]